The Arbitral Award of October 3, 1899: A Century Later

By Cedric L Joseph
Stabroek News
October 3, 1999

One hundred years ago, shortly after noon on October 3, 1899, the Tribunal of Arbitration assembled at the Quai d' Orsay in Paris (the French Foreign Ministry) to determine the boundary line between British Guiana and Venezuela, tendered its award. Britain obtained most of its claim with two significant adjustments: on the coast Venezuela was awarded the strategic Point Barima affording control of the Orinoco and in the interior the fiercely contested upper reaches of the Cayuni. Venezuela's claim for the boundary on the Essequibo was rejected. Both Britain and Venezuela had given the solemn undertaking to consider the result of the Tribunal as a "full, perfect and final settlement" of all questions referred to the Arbitrators.

Since the 1870's awards were decided by majority vote and this was the first occasion of a unanimous decision. Further, in accord with the prevailing practice, there was no requirement by treaty to explain the award.

Notwithstanding, Feodor de Martens, President of the Tribunal, addressed the Tribunal stating that, despite the great interests involved and the extent of the territory at stake, the boundary laid down was a line based upon justice and the law and that the judges were actuated by a desire to establish compromise in a very complicated question. This element of 'compromise' would later be vitiated as a "deal".

Press conference in Venezuela after the meeting

The award was reached after fifty-five exhaustive, spirited and contentious sessions. Each party had submitted a case, a counter case, and an argument in addition to their oral arguments and some 2,650 documents. Even the Capuchin archives in Rome were raided. The arguments explored the opinions of international lawyers, helpful and conflicting, on questions of occupation, political control and influence - a very imprecise quality - and on other historical evidences. The award was well received by the leading media in Britain and the United States. Apart from the summary observation of de Martens, Chief Justice Melville Fuller, one of two Americans on the Tribunal, was the only member to comment publicly on the award. He said that each judge would have made an award "differing in extent and character". Only at the last moment, he added, was agreement possible and it was only by the greatest conciliation and mutual concession that a compromise was reached.

In Caracas, the British Minister, diplomatic relations being conducted at the level of Minister, reported that the public received the award with indifference. Private comment by "Venezuelans of education", he observed, regretted that Barima point had been awarded to Venezuela who could never hope for a prosperous Orinoco region had it remained with Britain. A fortnight later, an article on the award in the leading newspaper "El Tiempo" asked "who would vote for Great Britain to preserve for civilisation this new Empire, or to let it go back to the condition in which it has been since the discovery of America?" and voted for Britain.

During the years 1901 -1905, an Anglo-Venezuelan Boundary Commission marked the boundary defined by the award. Four reports with accompanying maps and five sets of Joint Acts were signed and submitted to their governments.

In their joint report, the Commissioners observed that the portion of the line laid down by the award from the source of the Wenamu to Mount Roraima as a direct line was not practical as it would cut the watershed of the Cuyuni on the Venezuelan side and the Mazaruni on the British side. They recommended that the watershed line be adopted which would result in Venezuela losing some 222.6 square miles of territory.

Britain supported the proposal and agreed privately to offer Venezuela compensation for the loss of territory but not to initiate the suggestion. The Venezuelan Congress, however, concurring with the opinion of the Federal executive and the report of the Permanent Committee of both houses on Foreign Affairs, declared the proposed modification unacceptable. Thus the Federal Executive ratified only the work of the Commission which accorded with the award. Venezuela would later describe its participation in the demarcation as of a "purely technical character."

A meeting in Venezuela in April 1981

The direct line in that portion of the boundary remains. And the line delineated was subsequently shown on British, Guyanese and Venezuelan maps and endorsed by the rest of the international community. Despite some disappointments, there the matter rested until Severo Mallet-Prevost.

In January 1944, Mallet-Prevost, the junior Counsel in the Venezuelan team at Paris, was decorated by the Venezuelan government with the Order of the Liberator in recognition of his services to the boundary issue. On February 8, 1944, he dictated a memorandum to a partner in his law firm claiming that the award was the result of a political "deal" between Britain and Russia and was null and void. He requested that the memorandum be published after his death. The memorandum contained several inaccuracies, many factual, which have been well publicised. On the basis of this posthumous memorandum, in February 1962, Venezuela reopened the boundary issue at the United Nations.

Mallet-Prevost, the junior Counsel, commands a central position in the history of the controversy. A distinguished international lawyer and a specialist in Latin American law, Mallet-Prevost was born in Zacetecas, Mexico, son of the American Grayson Mallet-Prevost and the Mexican Marianiata Cosio, the daughter of Don Severo Cosio, governor of the state of Zacetecas. He was intensely involved in the dispute, as it was then, beginning as the secretary of the Commission appointed by President Grover Cleveland in January 1896 to determine unilaterally the boundary line which the United States would then enforce. On two occasions he was chided by Commission members, all Americans, for suppressing their conclusions and inserting his opinion to give an advantage to Venezuela. He had so impressed Venezuela that he was the first counsel to be chosen to present its case before the Tribunal. (Incidentally, the Commission had abandoned its task after Britain agreed to arbitration but Justice David Brewer, its President, later observed that the award agreed "substantially" with the line the Commission had worked out).

Mallet-Prevost made thirteen speeches before the Tribunal; the leading British counsel, Sir Richard Webster, also made thirteen but returned with four more towards the close of the proceedings. At the close of Mallet-Prevost's statements, Sir George Buchanan, the British Agent, reported to Prime Minister, Lord Salisbury, that he had made no real impression on the Tribunal. He had attacked the British position too much, minimising evidence of Dutch control in the disputed territory without presenting any evidence of Spanish control over the territory.

Two difficulties faced Mallet-Prevost. First, the British arbitrator, Lord Russell of Killowen, displayed awesome insight and mastery of the historical and legal aspects of a complex controversy. Counsel on both sides were uncomfortable with his interrogation. Mallet-Prevost, especially, felt the weight of his inquisition which disrupted the sequence of his argument and led to endless and prolonged repetition. At one point Russell even demanded of him a straight answer "once in a while".

Second, Venezuela's case rested primarily upon the act of 'discovery' by Spain. After four centuries of non-recognition by even the Catholic princes of France, Venezuela ignored the prevailing sentiments. John Bassett Moore, the distinguished international lawyer of his day, expressed the consensus of Grotius, Pufendorf, Vattel, Wolff, Twiss, Wheaton and others when he concluded that "title by occupation is gained by the discovery, use, and settlement of territory not occupied by a civilized power (sic). Discovery gives only an inchoate right, which must be confirmed by use or settlement."

This difficulty did not escape former US President Benjamin Harrison, the leading counsel for Venezuela, who had noted in January 1898 during his preparation for the Tribunal that Venezuela's claims were not "gilt edged" and that if the argument for the original Spanish title were countered by an argument for non-occupation on the part of Spain, then they were "insecure".

Moreover, Mallet-Prevost received little support from the American arbitrators; Justice Brewer who was President of the Cleveland Commission, failed to demolish arguments by British counsel and Chief Justice Melville Fuller was mute. The New York Times of October 5 1899 scored the problem when it validated the British argument that Venezuela's presumption to a certain predominance or overlordship meant that although they are not possidentes, they are still beati. An admission that Spain was beati would be tantamount to recognising an overlordship over both North and South America.

Much acrimony flowed through the proceedings. Both Harrison and Mallet-Prevost nursed indignation against the British arbitrators and counsel, particularly Sir Richard Webster. In his concluding statement Harrison stated that he had never since his irresponsible childhood been so scolded and lectured as he had been by Sir Richard. And he retorted that the British case was no case at all. The private correspondence also reveals the harboured resentments against the British whom Cleveland described to Richard Olney, the former secretary of State, as "mean and hoggish".

Ominous for the future was the Parthian shot left by Harrison that in international law there was the principle of absolute equality of nations. No weight, he said, could be attached to the fact that one nation was stronger, more enterprising or endowed with a better government than the other and consequently more capable of developing territory which it might appropriate. It was this perceived image of injustice which would be transmitted to later years.

Europe at the fin de siecle flaunted a European club of monarchs, after 1870 France had no monarchy, and incestuous noblesse, of which Czarist Russia was a full member, sporting a high culture, albeit a minority one. Germany would soon sever the club's camaraderie; Russia would disintegrate into Communism; and outsider republican United States would be invited to rescue the ancien regime.

South America, in Eric Hobsbawm's words, was an informal part of the British Empire. Venezuela in the 1890s was in the throes of perennial revolution. El Tiempo, accepting the award, also observed that ever since its foundation in 1811 the Republic had experienced an average of one armed intervention a year. Constitutional guarantees had been suspended; the administration of justice did not exist; and judicial and legislative functions were usurped by the military. During 1899 three factions disputed power. So unstable was the situation that the Venezuelan Agent, anticipating the overthrow of Ignacio Andrade's government, initiated a discussion with his British counterpart on September 18 about an early payment of the moiety due by Venezuela for the expenses incurred by de Martens. Mr Andrade, however, survived the years.

In the same vein that the repressed resentments and anglophobia in the United States had exploded in the dispatches of Olney and Cleveland in the 1890s when Britain resisted arbitration, in like manner impulses about imperial brigandage would be released at an opportune time when the scales of power, authority, and espectability were titled in Venezuela's favour. Mallet-Prevost provided the occasion, though not the case; there was never any.

For in November 1962, at the time of the United Nations debate, the Director of International Policy in the Ministry of Foreign Affairs, Dr Francisco Alfonzo Ravard, admitted to the Head of Chancery of the British embassy that Venezuela had shared the existing doubts that Mallet-Prevost's memorandum was simply the "belated self-justification of an elderly lawyer."

However, having studied the correspondence between Harrison and Cleveland, Venezuela had concluded that it was not and that there was a good case.

Yet, Foreign Minister Marcos Falcon Briceno conceded in his address to the United Nations that the extracts from the correspondence were couched in general terms. It was the domestic situation in British Guiana in the early 1960s, which ultimately made the occasion propitious for adventure.

Riven by political and ethnic conflict as it moved haltingly towards political independence, Venezuela opened another dimension claiming that its national security was threatened by Dr Cheddi Jagan whose close relations with Dr Fidel Castro could develop an alignment with the Sino-Soviet bloc and situate Venezuela within a communist penetration of South America through British Guiana. When the archives for this period become fully available, it would be interesting to examine the United States role in the boundary issue.

Acute division in Guyana on the Geneva Agreement, coinciding with independence besieged by political and ethnic division, would, and did, tempt any neighbour with a grievance. Hence the full occupation of Ankoko; President Leoni's decree purporting to annex a part of Guyana's territorial waters; intervention in the Rupununi, and Suriname's seizure of the New River triangle. There was one miscalculation. The foreign policy of LFS Burnham and a supporting diplomacy which was second to none averted what may have been a disastrous situation. Guyana adequately secured its case and its territorial integrity before every international forum.

Venezuela's territorial assertions were also informed by domestic forces. Generally, times of political/ military/intellectual/industrial/media ferment pushed the executive to reach for the higher nationalist ground with some grand gesture, as stated, to reclaim the national patrimony, the Essequibo. Political differences in Guyana would continue to the present time to trigger Venezuelan reaction, varying only in stridency but constant in purpose. With the new People's rogressive Party/Civic (PPP/Civic) administration, the PPP being openly opposed to the Geneva Agreement at its inception, it was inevitable that Venezuela would attempt to extract itself from nother landmark decision and circumvent it with proposals for globality or an environmental treaty calculated to undermine Guyana's negotiating position. Further, the objection to evelopment in the Essequibo continues over the satellite project by Beal Aerospace and Esso's interest in exploration.

The PPP/Civic's initial receptivity to Venezuela's courting alerted opposition in several quarters which had grasped the intent and implications. The official reaction was reflexive, vituperative and unitive. Opposition was deemed to be politically motivated and its professional bearing, including some editorial opinion in the Stabroek News, was dismissed. So too was the opportunity to onsolidate a national position. To its credit, however, the administration ultimately took, or announced, no definitive position on these proposals.

The current political leadership in Guyana and Venezuela is relatively young. The path of each head to the Presidency has been extraordinary. Seemingly intractable issues, say the Middle East nd apartheid, have yielded to initiatives, sometimes unorthodox, by extraordinary leaders and set in motion a determined process for resolution. The potential of the well established cordial ilateral relationship affords a good opportunity to advance a new process at this milestone. For the values, presumptions and ideological assumptions of the 1960s have either been superseded, ere erroneous or do not exist today and to perpetuate positions inspired in a cold war paradigm is retrogressive. Once more to Mallet-Prevost. He had visited Cleveland in February 1900 and the latter had written to Olney stating that he was glad to hear that Venezuela had done "pretty well" although hocked by the "disgusting story" Mallet-Prevost had told about the award. Olney, however, had heard another version. Recalling Mallet-Prevost's account, Olney informed Cleveland that Chief ustice Fuller did not concur with Mallet-Prevost's view. It was strange that Falcon Briceno, relying on excerpts from this correspondence for his address to the United Nations, missed this letter.

Justice Brewer had already told his story that there were at least four, or even five lines. Of the American statesmen involved in the arbitration, eminent Supreme Court Justices, counsel and former Presidents, Mallet-Prevost alone has made the allegation of a two-way political "deal". To this day, despite the availability of new public and private records, the allegation remains nsupported and cannot contest the award.

At least five options are available for future action; mindful at all times of implications for the border with Suriname. First, a domestic prerequisite: liberate the boundary issue from the political ju jitsu which has permeated and distorted national issues and mobilise the entire moral weight of he nation behind any initiative;

Second, expand the scope and work of the Good Offices of the United Nations Secretary General by Guyana and Venezuela each nominating a representative of a member state to sit with the Good Officer as chairman to examine whether, since the Geneva Agreement, the Venezuelan contention of nullity has been fully established and accordingly pronounce on the validity of the award;

Third, a political solution within or outside the Geneva Agreement appreciating the inevitability of overtures for concessions;

Fourth, frame another Protocol of Port of Spain to freeze the problem for one hundred years, passing the issue to another generation, albeit a distant one, and admitting inadequacy.

Fifth, do nothing which is always an attractive option with some possible jeopardy.

A century ago, the tyranny of discovery confronted the tyranny of empire and, despite full respect for prevailing law and justice, left a profound sense of despoliation. Today, to keep pace with the hythm of historical evolution, we, Guyana and Venezuela, equally beneficiary and casualty, as an act of enlightened maturity should bring down the curtain on the boundary controversy, finally and ettled, and chart an unencumbered era in our relationship.

A © page from:
Guyana: Land of Six Peoples